tre IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G169 of 1986 GENERAL DIVISION ) BEIWEEN: NANCY MARIS STEWART and ADAM HUNTER STEWART Applicants AND: GLENPITNEY PTY. LTD. First Respondent AND: HAROLD KUCKO Second Respondent AND: LLOYD JOHN WILLIAMSON Third Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 19 MARCH 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: (1) (2) (3) (4) Pursuant to 0.52, r.10, time for making the oral application contemplated by r.10, subr.1 1s extended to 19 March 1987; The application for leave to appeal be dismissed; The third respondent (to the original proceedings) pay the applicants' costs of and incidental to the application for leave to appeal to be taxed; The application for leave to appeal from order 1 no. (2) above be dismissed. oN NUen to ™! Lt Settlement and entry of orders is dealt ah in MEN, Order 36 of the Federal Court Rules. 7 "oat IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G169 of 1986 GENERAL DIVISION ) BETWEEN: NANCY MARIS STEWART and ADAM HUNTER STEWART Applicants AND: GLENPITNEY PTY. LTD. First Respondent AND: HAROLD KUCKO Second Respondent AND: LLOYD JOHN WILLIAMSON Third Respondent PINCUS J. 19 MARCH 1987 EX TEMPORE REASONS FOR JUDGMENT This is an application for leave to appeal from an interlocutory judgment of mine delivered on 2 March 1987. No application was made orally at the time of delivery of judgment, but Mr. Boyce Q.C., senior counsel for the applicant, asks that time be extended now to allow such an application under 0.52, r.1(1), and that will be ordered. The principal question dealt with in my judgment of 2 March was whether the claim made by the applicants against the third respondent in the principal proceedings, a director of the first respondent, was so pleaded as to bring the case within s.75B of the Trade Practices Act 1974. In dealing with this application, I shall give the parties the designations they have in the principal proceedings. The third respondent argued before me, when the matter was first discussed, that the pleading was inadequate and that the principal application should be struck out or that the statement of claim should be struck out, with leave to replead. When I delivered my judgment of 2 March 1987, counsel for the applicants drew my attention to the fact that further particulars in the statement of claim had come into existence. However, I declined to consider them at that stage and delivered my judgment in favour of the applicants, dismissing the third respondent's challenge to the application. Mr. Boyce Q.C. now argues that my judgment is attended with sufficient doubt to justify an appeal, in which the application of the High Court's decision in Yorke v. Lucas (1985) 61 A.L.R. 307 to the allegations inthe pleadings could be agitated. There does not appear to be any decision of the Full Court which has laid down a test on the basis of which one might determine whether leave to appeal from an interlocutory judgment should be granted. That question was, however, debated by counsel before me. Senior counsel for the applicants, Mr. Russell Q.C., sought to rely on principles applied by the Court of Appeal in England on applications for leave to appeal to the House of Lords. I note that in Randall v. Jet Corporation of Australia Pty. Ltd. (unreported, 5 July 1985), Woodward J. referred to Niemann v. Electronic Industries Ltd. £19781 V.R. 431 at p.439 in connection with an application of this sort, saying that: "An applicant for leave to appeal in interlocutory proceedings such as these must show that substantial injustice would follow from a refusal." In B.H.P. Petroleum Pty. Ltd. v. Oil Basins Ltd. £19851 V.R. 756, the Victorian Full Court applied the principles that it was necesary to show - (a) the decision was attended with sufficient doubts to justify granting leave and, in addition (b) substantial injustice would be done by leaving the matter unreversed. Although, as I have said, the question was discussed by counsel, it does not appear to me necessary to attempt to enunciate any general principle on which to decide this application, because the case before me 1s not one which requires that to be done. It is really an attack on a pleading. In general, it seems to me unlikely that it would be a proper course to grant leave to appeal from an interlocutory judgment involving questions of pleading only, unless it appears that the appeal's result is likely to effect the resolution of a question of law basically involved in the proceedings. One of the inherent disadvantages of allowing appeals to the Full Court on mere pleading points not of that character is that pleadings may change, with the result that considerable costs and time may be thrown away in determining matters of only transitory importance. Here, I had the impression that counsel were agreed that, if the appeal were successful, the result would probably be the production of a further statement of claim and not the end of the proceedings. The present question exemplifies the proposition I have mentioned, because the pleadings I discussed in my judgment of 2 March have already changed in a significant way. Applying the test mentioned, I am of the view that it is unlikely that a successful attack on my judgment of 2 March would resolve any question of any vital importance to the proceedings or, indeed, any legal question whatever. It would be concerned with matters mentioned by Mr. Boyce Q.C. before me, such as whether allegations in the pleadings are ambiguous, whether interrogatories directed to the issues raised by the pleadings would be merely fishing, and matters of that sort. If one were to apply, instead, the broader test laid down in the Supreme Court of Victoria, I do not see that any substantial injustice would be caused to the third respondent if my order of 2 March were to stand. I should say something about a question which was debated, namely whether it is right at this stage to look at the further particulars discussed above, which were not taken into account in my judgment sought to be attacked. In my opinion, although those particulars cannot affect the question of the correctness of that judgment, it is right to note their existence when exercising the discretion whether to grant leave to appeal. That 1s so because the particulars give practical point to the consideration mentioned above, namely that the decision of the Full Court in respect of the form of the pleadings considered by me would not resolve any issue of importance in the case. However, even ignoring those further particulars, it seems to me clear that this is not the sort of case in which leave should be granted. Some pleading points may, as I have said, relate to matters of basic importance 1n the proceedings which, if determined in advance of trial, would substantially affect the course of events there. But there 1s in my view a prima facie case against having the Full Court consider not whether findings of fact amount to acase having a good legal foundation, but whether the allegations of fact of the applicants, which may or may not ever be made out, amount to such a case. It was no doubt for reasons of this kind that, a century ago, the process of demurrer was abolished in England. The orders will be - (1) that under 0.52, r.10 time for making the oral application contemplated by r.10, subr.1 is extended to today, 19 march 1987; and (2) that the application for leave to appeal is dismissed. It has been argued by junior counsel for the third respondent that the order for costs asked for by the applicants should not be made, on the ground that the application for leave failed partly because of the further particulars. Although I expressed the view that I should take those particulars into account, I am also of the opinion, as I have said, that whether or not they are taken into account, the applicant should fail. It will therefore be ordered that the third respondent pay the applicants' costs of and incidental to the application for leave to appeal, to be taxed. Counsel for the third respondent now asks for leave to appeal pursuant to 0.52, r.10 1n respect of my refusal of leave. That application for leave to appeal is also refused. > certify that this and the 5 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus ¥v 7 Associate Dated 14 March (487